Mundell v. Franse
| Decision Date | 25 January 1936 |
| Docket Number | 32548. |
| Citation | 143 Kan. 139,53 P.2d 811 |
| Parties | MUNDELL v. FRANSE et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Alleged errors in overruling demurrer to amended petition and motion for judgment on opening statement held not reviewable, where entire record disclosed no motion for judgment on opening statement, no opening statement, no demurrer to pleading, and no ruling thereon, notice of appeal referred to neither motion nor demurrer and journal entry of judgment was entirely silent as to each (Rev.St.1923, 60--3101, 60--3103 60-- 3306).
Action of grantee under deed duly executed and acknowledged purporting to convey realty, in taking charge of and leasing land, is prima facie evidence of delivery, which can be overthrown only by clear and convincing evidence.
Evidence sustained findings that deed sought to be canceled was not intended to become effective until grantor's death, was not intended to be delivered to grantee, and was not delivered to grantee, but was obtained by her contrary to grantor's express request.
Where mother executed deed to daughter with intent to make it effective on mother's death, daughter obtained deed against mother's request and recorded it, and thereafter mother remained in possession, leased land, paid taxes, and collected rents for five years, action by mother to cancel deed brought promptly after daughter first asserted rights thereunder by taking crop held not barred by limitation (Rev.St.1923, 60--304, subd. 4, 60-- 306).
1. Where the entire record before us discloses no motion for judgment on the opening statement, no opening statement, no demurrer to a pleading, and no ruling thereon, and the notice of appeal refers to neither the motion nor demurrer, and the journal entry of judgment is entirely silent as to each of them, they are not available for appellate review.
2. Where a grantee in a deed obtains possession of it against the wishes and express request of the grantor and places the deed of record, thereby clouding the title of grantor, no title passes to the grantee, and the grantor may maintain an action to set aside the deed commenced promptly after the grantee attempts to assert rights under the deed.
3. Where a grantee under a deed duly executed and acknowledged purporting to convey real estate, takes charge of and leases the land, such facts are prima facie evidence of delivery which can be overthrown only by clear and convincing evidence.
4. Findings of the trial court that a deed was not intended to become effective until death of grantor and was not intended to be delivered to grantee and was not delivered to grantee, but was obtained by grantee contrary to express request of grantor, were held to be sufficiently sustained by the testimony.
Appeal from District Court, Linn County; William F. Jackson, Judge.
Suit by Mrs. S. A. Mundell against Nellie I. Franse and another. From a judgment for plaintiff, defendants appeal.
Harry C. Blaker, of Pleasanton, for appellants.
Karl V. Shawver, of Paola, for appellee.
This was a suit to cancel a deed, quiet title, and for an accounting. Plaintiff prevailed, and defendants appeal.
Appellants' contentions are, the trial court erred in overruling their demurrer to the amended petition, their motion for judgment on the opening statement, and in rendering judgment for appellee.
The first two complaints are not available to appellants. The record before us discloses no opening statement, motion for judgment, or ruling thereon. The same is true concerning the alleged demurrer to the amended petition. It may be further stated the motion for new trial does not specifically raise either of these questions, and the record before us discloses no ruling on the motion for new trial. The notice of appeal in no way refers to any of these alleged errors. It shows on its face the appeal was from only the judgment, order, and decision rendered on the 12th day of April, 1935. The final journal entry of judgment of April 12, 1935, is completely silent as to any demurrer to the amended petition and the above motion. It therefore follows there was no appeal from either. R. S. 60--3101, 60--3103, and 60--3306; Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 291 P. 935.
True, where on the face of a pleading it appears the cause is barred by the statute of limitation, that question is properly raised by demurrer. Norton v. Board of County Com'rs of Montgomery County, 109 Kan. 559, 199 P. 388; Kansas State Bank v. Shaible, 118 Kan. 73, 234 P. 40. The final journal entry of judgment discloses the court considered the question of the statute of limitations after the introduction of evidence. Such consideration was proper, as the answer pleaded the statute of limitations. It will therefore receive consideration here as a part of the answer to the amended petition. We therefore now have before us the question of the statute of limitations and the sufficiency of competent evidence to uphold the judgment.
Appellants' contention is the suit is predicated on fraud and therefore barred by the two-year statute of limitations. R.S. 60--306. The deed was executed and acknowledged on the 23d day of May, 1929. Appellant Nellie I. Franse took it from the home of her mother against the mother's wishes and request about January 28, 1931. It was recorded January 30, 1931. The mother leased the land from 1929 to 1933, inclusive, and collected the landlord's part of the crops and rents during those years. The mother learned about the recording of the deed about one month after it was recorded. As above stated, however, she continued to exercise rights of ownership and possession. Appellants took charge of the eighty in question and leased it for the farm year of 1934, and kept all of the rent and had the use of it for the year 1934. This suit was commenced September 26, 1934, to set aside the deed and recover the 1934 rents.
The original petition was predicated on the theory of no consideration, no delivery of deed, hence no transfer of title, and that appellee was entitled to have the cloud removed from her title. Appellee had the right to try the case on her own theory and stand or fall on that theory. The petition was sufficient on her theory. Appellants filed a motion to make the petition more definite and certain by stating...
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